Lawful Rebellion Logo

Lawful Rebellion Logo

Tuesday 22 August 2017

Dear All, Below is my application to join Graham Moore's Judicial Review of Home Office policy in respect of arms for defence. I do not like talking about myself but in this case it was necessary in order to put the best possible case for being an "Interested Party". The Home Office have responded to Graham's initial application and the answer to that is being worked on.I will ask Graham before circulating it. Regards, JBH. ============================================================================================ Graham Moore v. The Secretary of State for the Home Department. Case Number CO/3135/2017. Summary of grounds for joining as an “Interested Party by JBH. I have received training in the use of firearms as a Commissioned Officer in the Territorial Army and in the policing of firearms possession and administration of the legislation in respect of the issue of certificates during my 30 years police service. I have held personal shotgun and firearms certificates for many years and have trained many people in the safe use of firearms of all kinds. I was the secretary of a National Rifle Association affiliated and Home Office Approved rifle and pistol club. Since retiring from the Metropolitan Police in 2008 I have been an occasional expert witness and “McKenzie friend” in litigation concerning firearms. I, with the agreement of Mr. Graham Moore (The Applicant) believe that I have interests in this case for the following reasons, original research that I have conducted with others into the Declaration of Rights, first-hand information about the Burke case cited by the Home Office, my part in the raising of a petition made to The Sovereign by a Barons Committee formed per Article 61 of Magna Carta in 2001, some informed proposals for an amended system for the administrative control of the supply and use of firearms and an outstanding claim against the Home Office for ultra vires seizure of my property. In 1997, when it was proposed by Parliament to sieze pistols from certificate holders following an incident at Dunblane, my associates and I began legal research concerning the Declaration and Bill of Rights. We corresponded with the House of Commons library and were furnished with a copy of a Paper on the Bill of Rights: “Gun control and the Bill of Rights. The library has received a large number of enquiries, which appear to be the result of campaigns among shooters opposing the new provisions on firearms control. Because of the initial influx of such enquiries, I prepared a section on the alleged constitutional implications of the then Bill as part of our research paper which we published for its second reading debate. There are a numbers of variants of the message sent to members which contain a reference to the Members oath of allegiance. I assume that the argument put forward by shooters is along the following lines; (1) The Bill of Rights 1689 requires all officers and ministers to serve the Monarch according to its provisions. (2) The Bill of Rights 1689 protects citizen’s rights to bear arms and not to have their property confiscated. (3) Therefore Members who support this sessions legislation may be in breach of their oath of allegiance. The 1997 Act does not appear to refer at all to the 1689 Statute, and any claims that the earlier statute has been impliedly amended or, indeed, that Parliament has no power to make such amendments, would have to be matters for the Courts if put before them. It is perhaps of interest that, notwithstanding the apparently widespread lobbying on Bill of Rights grounds, virtually no mention of this argument was made during the Bill’s passage through Parliament” (Document Ref. 4321 97/3/14HA BKW/aor. 4th March 1997) The briefing document referred to is Research Paper 96/102 dated 8th November 1996. Page 75 quotes the case of Bowles v. Bank of England and confirms that the Bill of Rights remains an operative statute. Page 10 contains the following passage; “ The underlying purpose of firearms legislation in the UK is to control the supply and possession of all rifles, guns and pistols which could be used for criminal or subversive purposes while recognising that individuals may own and use firearms for legitimate purposes...” At that time, there was no publicly available transcript of the Declaration of Rights. It was necessary, per Pepper v. Hart (1992) to determine what the text was in order to correctly interpret the Bill of Rights. One of our number, Mr. John Bingley, visited the House of Lords library, photographed and transcribed that document. He subsequently engaged in correspondence with government ministers and obtained certain assurances about the effect of the Declaration and Bill of Rights, the Coronation Oath and Accession Declaration. A link to his most recent public presentation on that subject to a conference of the British Constitution Group (Of which I am a member) is here: A copy of the presentation has been lodged with the Court and served on the respondent. Mr. Bingley is prepared to give evidence in person if required. One outcome of our researches was that In February 2001, The Sovereign was served with a Petition per Article 61 of Magna Carta by representatives of a Barons Committee which was formed following petitioning of all members of the House of Lords by the public about further “integration” with the European Union. One of the grievances which The Lords were petitioned about was Mr. Burkes case: “In late 1998 and early 1999 the Magna Carta Society supported Mike Burke in raising a test case on constitutional law, an application for judicial review and appeal on the right to keep and bear arms (RKBA) issue (Secretary of State for the Home Department Ex Parte Michael James Burke). Three Judges of the Court of Appeal, in abnegation of their oaths of office and in the face of overwhelming legal arguments to the contrary, made this declaration in their judgement: "Mr. Burke then takes a third point. He says that the Secretary of State has wrongly fettered his discretion, in that he is refusing all who wish to carry arms for their personal protection. However, as the letter of 2nd October makes clear, he does make exceptions where there is a need from the nature of their trade, profession, occupation or business, but those exceptions are subject to his present policy, namely that authority shall not be granted to those who need them for personal protection purposes. That is a policy which the Secretary of State is entitled to have. There is nothing improper in him having it. It does not assist Mr. Burke . Therefore, this application must be refused....". This placed "policy" above the law., in particular the principle that a person with responsibility for “Quasi-judicial” decision making may not fetter their discretion. This is commonly known as the “Wednesbury” test per Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. There is statutory provision to the same effect in sections 3 and 12 of the Interpretation Act 1978 and in the unrepealed Bill of Rights itself in its body and in the prohibition on dispensations by Non-obstantes in section II. The common law requirement for the subject to be armed can be proved by reference to the Sheriff’s Act 1887. Here is section 8 as it was originally enacted: “8 Powers of sheriff for posse comitatus (1) Every person in a county shall be ready and apparelled at the command of the sheriff and at the cry of the country to arrest a felon whether within a franchise or without, and in default shall on conviction be liable to a fine, and if default be found in the lord of the franchise he shall forfeit the franchise to the Queen, and if in the bailiff he shall be liable besides the fine to imprisonment for not more than one year, or if he have not whereof to pay the fine, than two years. (2) If a sheriff finds any resistance in the execution of a writ he shall take with him the power of the county, and shall go in proper person to do execution, and may arrest the resisters and commit them to prison, and every such resister shall be guilty of a misdemeanor…”. Section 8(1) was repealed by the Criminal Law Act 1967. The long tile to the1887 Act is this: “An Act to consolidate the Law relating to the office of Sheriff in England, and to repeal certain enactments, relating to Sheriffs which have ceased to be in force or have become unnecessary…”. My understanding of this is that the repeal of a statute which gives effect to a common law rule restores that rule so the common -law requirement for the “Power of the County” to be “ready and apparelled” remains in force. In any case, this custom would be protected by the Coronation Oath. Application of these tradition methods for law enforcement would, in my professional opinion, go a long way to recovering what are known as “No go” areas in many of our cities. The authority for the Magna Carta Societies resort to Petitioning the House of Lords is described in this passage from Blackstone which also confirms the right to possess arms for defence: “The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W.& M. st. 2, c.2, and it is indeed a public allowance under due restrictions, of the natural right of resistance and self- preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in full vigour; and limits, certainly known, be set to the royal prerogative. And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints - restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens." Pages 143 and 144 of the first volume of the 21st edition of Sir William Blackstone's 'Commentaries on the Laws of England' dated 1884 I attach as Exhibit JBH/2 a copy of the Barons Petition. You will see that the grievance for which the Barons required assurance was this: “WHEREFORE it is our humble duty TO PETITION Your Majesty • to withhold the Royal Assent from any Parliamentary Bill which attempts to ratify the Treaty of Nice unless and until the people of the United Kingdom have given clear and specific approval; • to uphold and preserve the rights, freedoms and customs of your loyal subjects as set out in Magna Carta and the Declaration of Rights, which you, our Sovereign, swore before the nation to uphold and preserve in your Coronation Oath of June 1953…”. After 39 days, a negative response was received from HM Private Secretary. The response was not considered satisfactory by the Barons. I submit that their Judgment of The Sovereign (Who is a member of the House of Lords) by Her Peers was lawful per Article 39 of Magna Carta because of Her actions (and inaction) which were complained of breached Article 40. The precedent for the Barons Committee is the common-law and custom is such circumstances. This means, I submit, that its authority is the same as its predecessors in 1215 and 1688. In the first case, the incumbent Sovereign kept his position, in the second he did not. I can give personal evidence about this because Mr. Burke and I were founder members of the Magna Carta Society and undertook the legal research which produced the petition. That document was approved by the late QC Leolin Price personally to Mr. Burke and I and it was we who printed and posted the petition to all members of the House Of Lords. If Mr Moore’s claim is accepted I undertake to submit it to the Baron’s Committee for their consideration. The grievances Mr. Moore requires to be remedied specifically includes “My right to keep and bear arms for my defence, my family’s defence and the defence of England and common law and customs…”. The Order that he seeks is to “Void all laws that cause issue with my constitutional rights as per the contract known as the Bill of Rights 1688/9…”. The respondents, via the Treasury solicitor representing the Home Office, are apparently relying on R. v. Burke Ex Parte Secretary of State for the Home Department CP/2750/98. This matter has been brought to Mr. Burkes attention. He is preparing an affidavit and will be available to give evidence in Court if required to the effect that that hearing before LJ Popplewell was sent to the Court of Appeal but was not dealt with as an appeal. The Home Office have therefore misdirected themselves and should review their position. I was present at the Appeal Court hearing as Mr. Burke’s Mc.Kenzie friend and I can give evidence of two matters that are of importance to Mr. Moore’s present application. The first is, as previously noted, the three learned Judges made it quite clear that they dealt with it as a new hearing, not an appeal against LJ Popplelwell’s Judicial review. The second issue is that the three Judges refused to allow material from Hansard to be used to clarify the “Will of Parliament” in relation to firearms legislation. This in defiance of an Attorney Generals Practice Direction on that subject in 1992. This omission resulted in an injustice when the three Judges restated LJ Popplewels decision. If material from Hansard had been admitted LJ Popplewell and the three Judges would have known differently. My researches have proved that Hansard records that the intention of Parliament in the Firearms Act 1920 was " To afford an effective system of control over the possession, use and carrying of firearms so as far as possible to secure that they do not come into the hands of criminals or otherwise undesirable persons..." (The Earl of Onslow in presenting the second reading 27 April 1920). He stated on 29 April that " Speaking generally, it must be assumed that the grounds on which a revolver may be applied for and the application (for a firearm certificate) may be granted by a chief officer of police is for protection of the applicant’s house" i.e. for self-defence. I submit that the “repeal and general savings” in all subsequent firearms acts, and the fact that they are described as “Amending” measures, means that the assurances given in the earlier enactments are therefore required to be recognised in the current law. Applying the ratio decedendi of the “Thoburn” judgment there is no specific repeal of the subject’s rights and obligations in respect of arms on the face of any Firearms Act nor to be found by reference to Hansard. Quite the reverse in fact. The sections which cover the issue of both shotgun and firearms certificates clearly state that “Chief officers of police shall issue…” unless there are specific reasons not to. In the debates on the Firearms Act 1968 in replies to questions from Lord Swansea (Chairman of the National Rifle Association) on 4 April 1968 in the Lords Mr. Graham Page confirmed in the Commons on 13 May 1968 that no Statutory Instrument was created for the guidance of chief officers of police that removed the right to arms for defence. For these reasons, I submit, the subjects common law rights and obligations in respect of the possession of firearms have not been repealed by any statute to date. The position is the same with other types of weapons as reference to the debates on the Prevention of Crimes Act 1953 and the Criminal Justice Act 1988 will confirm. Those Acts use the formulas “Without lawful authority or reasonable excuse” and “Without lawful authority or good reason” respectively. In other words, there are “lawful authorities”, “reasonable excuses” and “good reasons” to possess weapons for defensive purposes. The late Lord Denning addressed these issues, applying Bennion’s “Implied Ancillary Rule” thus: “Criminal Justice Bill HL Deb 23 November 1987 vol 490 cc410-527 410 § 7.15 p.m. § Lord Denning My Lords, may I say a word on this? I can well understand the anxiety of my noble friend Lord Paget to say that if a man has a knife with him for self-defence then he is not guilty of any offence. I quite agree with that. He wants to put it in express terms, but it is really covered by the existing terms. The man has to prove that he had good reason or lawful authority. Surely the best of reasons—the "good reason"—is that he had it with him for the purpose of self-defence or with lawful authority, as the case may be. Therefore, the case of self-defence is already provided for by the section; that if he has it for self-defence or with any lawful authority it comes within "good reason"…”. It is apparent that instead of trying to secure a change in the law by Parliamentary means, from 1969 Home Office policy in this regard has been consistent. Their policy is “Victim Disarmament” without consultation or lawful authority. It is contrary to decided cases and in defiance of the Royal Charter of the National Rifle Association. Mindful of the Practice Direction on the unnecessary duplication of authorities, I draw the Courts attention to: “Greenly v. Lawrence Kings Bench (1949). Case Stated by the Recorder of Reading. At the general quarter sessions for the borough of Reading held on 29 January 1948, Sir John Greenly, the owner of a pistol appealed under the Firearms Act, 1937, s 2(8), against the refusal of the chief constable of Reading to grant a renewal of a firearm certificate under s 2(2) of the Act authorising him to have in his possession 50 rounds of ammunition for a 25 Colt automatic pistol. The recorder found as a fact that the applicant for the certificate was not in any way unfitted to be entrusted with a firearm and that he had been a good shot with both rifles and revolvers. His residence stood in its own grounds and could easily be approached by an intruder from the south and west. He was aged 63 and kept a large number of valuable articles in his house. He wished to possess ammunition for the pistol to protect himself and his property by shooting if that became necessary in the event of attack by an armed intruder. The recorder held that this was a good reason for his having possession of the 50 rounds of ammunition and allowed the appeal. The Divisional Court dismissed the chief constable’s appeal against this decision on the ground that it was a question for the recorder’s discretion. If the applicant does appeal, the recorder, if it is in a borough, as in this case (or a court of quarter sessions, if it is a county) must consider whether the applicant has a good reason for having in his possession a firearm or ammunition without danger to the public safety or to the peace. If quarter sessions comes to the conclusion that the reason advanced by the applicant is a good reason, the court is to grant him a licence. It is a mere matter for discretion. We do not sit in this matter as a court of appeal. We only sit to decide whether the recorder has gone wrong in law. We can find no reason for saying that he has gone wrong, and, therefore, this appeal fails and must be dismissed with costs… Another relevant Judgment concerns training in the use of arms: "The right of His majesties subjects to have arms for their own defence, and to use them for lawful purposes, (such as hunting) is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of the Kingdom, not only as a right, but as a duty... And that this right which every (subject) most unquestionably possesses individually may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly established... It seems to follow, of necessary consequence, that it cannot be unlawful to learn to use them (for such lawful purposes) with safety and effect. For it would be too gross an absurdity to allege that it is not lawful to be instructed in the use of anything which is lawful to use... "The lawful purposes for which such arms may be used (besides immediate self defence) are the suppression of violent and felonious breaches of the Peace, the assistance of the Civil Magistrates in the execution of the laws, and the defence of the kingdom against foreign invaders". To strengthen the civil power, and to keep themselves at all times prepared for a vigorous and effectual discharge of their duty as citizens ... are, in my view, sufficient visible and legal objects for the continuation of the London Association". The Recorder of London, 1795. (From “The Origins and Development of the Second Amendment”. David T. Hardy. 1995). The London Association was ancestral to the volunteer movement of the Victorian period which led to the establishment of the National Rifle Association. The “London Association” was very much part of the establishment: "Sir James Sanderson, Lord Mayor 1792-3. He played a major role as chairman of the London Association for aiding the Civil Powers in suppressing seditious meetings, for which he received his baronetcy. He was very active in preparing the city for possible invasion following the declaration of war by France on the 1st February 1793, promoting the Volunteer Corps Act and the City Militia Act. He was founder of the Revolution Society, an organisation established to celebrate anniversaries of the 1688 revolution...". Moving on to the present day, there is reason to believe that the present Mayor of London has been associated with groups whose activities include the acquisition of and training in the use of arms, but for illegitimate reasons: “MPs shout 'racist' at Cameron after comments on Sadiq Khan during PMQs The prime minister criticised Labour’s candidate for London mayor for ‘sharing a platform with extremists’ David Cameron was met with cries of “racist” in the House of Commons as he joined attacks on Labour’s London mayoral candidate after he claimed that Sadiq Khan had links to a supporter of Islamic State. Cameron laid into Khan during prime minister’s questions, saying the Labour mayoral contender had nine times shared a platform with a radical imam called Suliman Gani, who he said supported ”IS” (Islamic State). In the Commons, Cameron said he was “concerned about Labour’s candidate as mayor of London who has appeared again and again and again” on a stage with people he described as extremists. After being interrupted by cries of “racist” by Labour MPs, Cameron continued: “The leader of the Labour party is saying it is disgraceful. Let me tell him, Suliman Gani – the honourable member for Tooting [Sadiq Khan] has appeared on a platform with him nine times. This man supports IS [Islamic State]. I think they are shouting down this point because they don’t want to hear the truth.” Incidentally, the Prime Minister benefited from the protection provided by Article 9 of the Bill of Rights which confirms “Parliamentary privilege” when he made this speech in the Chamber. Let us not forget that The Bill of Rights requires its measures to be upheld by Crown officials in “All and every particular”. Also note that the Bill refers to the Declaration, which is why knowledge of its full text was essential: “ That all and singular the Rights and Liberties asserted and claimed in the said Declaration are the true auntient and indubitable Rights and Liberties of the People of this Kingdome and soe shall be esteemed allowed adjudged deemed and taken to be and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said Declaration And all Officers and Ministers whatsoever shall serve their Majestyes and their Successors according to the same in all times to come….”. I can only speculate on the reasons why the Declaration was not available to the public until now. I can think of several reasons, but none reflect well on the present establishment. This information is presented to counter the Home Office’s proposition that the Bill of Rights has somehow fallen into desuetude and is no longer required. That concept is known to Scots law but not English, as reference to the Scots Claim of Right will confirm. The year of the Declarations passage, 1688, was only five years after a Mohammedan army was at the gates of Vienna, a city protected by a Roman Wall. The siege was lifted by a Polish cavalry army, just in time. This history is little known today but would have been a major consideration then. Today, the same Home Office which is seeking to disarm the public has admitted that its policies have allowed many thousands of “Returned Jihadis” into the UK. This is not “Joined up Government”. It is beyond incompetent, it is treasonous. I mention the fact that “Duress of circumstances” is not a defence to murder or treason. I also bring to notice the fact that the Royal Charter of the National Rifle Association remains in force “For the promotion of marksmanship in the interests of Defence of the Realm and permanence of the Volunteer Forces, Navy, Military and Air”. All Home Office approved rifle and pistol clubs are affiliated to the NRA and until the Firearms (Amendment) Acts of 1988 and 1997 engaged in the training of loyal subjects in the use of service weapons (ie. military pattern weapons of the day) in realistic target practices (ie. war-like) without adverse social consequences. The history of this is explored in Mr. Law’s book which I shall refer to below. The National Rifle Association’s Royal Charter ends in the following obligation: “ AND WE DO HEREBY FURTHER GRANT AND DECLARE that it shall be lawful for the Members of the Corporation in General Meeting to alter or revoke any of the said rules, or other the rules for the time being of the Corporation, and to make such new and other rules with respect to the qualification, privileges, admission, and a motion of Members, the appointment, emoluments, and tenure of office of the officers and servants of the Corporation, and with respect to any other of the matters contained in the said scheduled Rules, and generally for regulating the affairs, property, business and interests of the Corporation, and for carrying out the objects of the Corporation. Provided that no such altered, new, or other rule shall be repugnant to these presents or to the laws and statutes of this our realm, and that if any rule so repugnant as aforesaid shall be made, such rule shall be void. IN WITNESS whereof we have caused these our Letters to be made Patent. Witness Ourself at Westminster, the 25th day of November, in the fifty-fourth year of our Reign…”. Prior to the re-classification of service type rifles and pistols in 1988 and 1997 the Rules of the NRA were varied to allow non-service type weapons to be used on their ranges. The NRA, to the best of my knowledge, made no representation on this subject to the Home Office in 1988 and again in 1997 to exercise their authority to allow such weapons to continue in use by the expedient of issuing section 5 permits. Mr. Moor’s action, if successful, will require both the Home Office and NRA to restore the pre-1988 situation in relation to the type of weapons and target practice to be provided to members of Rifle Clubs in order for them to “Carry out the objects of the Corporation” in a manner that is not “Repugnant to these presents or to the laws and statutes of this our realm,…”. Regarding reforms to the present arrangements for the administrative control of the supply and use of firearms of all types, I attach as Exhibit JBH/2 the relevant chapter from a book by Mr. Richard Law who is secretary of the Shooters Rights Association (which I have been a member of for many years) and a noted authority on the subject. I also draw to the Courts notice the fact that in 2014 a Grand Jury was convened which produced a Presentment of a case to answer against the then Home Office Minister for Policing for misconduct in office. The Minister, Mr. Damien Green, had in the preface to that year’s edition of “Firearms Law, Guidance to police” denied that there was a right to possess firearms. An account of the Grand Jury proceedings is here: A personal grievance, which I share with several hundred thousand other loyal subjects, is that in 1988 and 1997 a full magazine capacity shotgun, and several rifles and pistols were seized from me by agents of the Home Office on dubious legal grounds. This application will settle the matter. The establishment should know that the introduction of the Internet means that misconduct by officials of all kinds can no longer be concealed and is being challenged. For example, the previously mentioned British Constitution Group has conducted original research and circulated material that was not in text books as noted above. In contrast, there is a body known as the UK Constitutional Law Association which describes itself thus: “The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’…”. Its self-appointed members are pillars of the establishment as it is presently constituted. The recent Supreme Court decision on the “Brexit” matter, which incidentally upheld the authority of the Bill of Rights, had this to say “The very full debate in the courts has been supplemented by a vigorous and illuminating academic debate conducted on the web (particularly through the UK Constitutional Law Blog site)…”. Any yet, a past Chair of that Association, one Dawn Oliver, a professor of Public Law, prolific author and advisor to Government Departments and a Barrister had this to say on the occasion of the 800th Anniversary of Magna Carta: “Dawn Oliver: Surprises in Magna Carta I assume that I am not the only public lawyer who decided to read Magna Carta and some literature about it for the first time this year, and found some surprises…”. This situation, I submit, is further grounds for the Court to do its duty to uphold the Rule of Law amongst the legal profession. Which brings me to assertions by the Home Office that the Bill of Rights may be disregarded. The entry on the citation of the Bill of Rights in the 2010 edition of Halsbury’s Laws of England says this: Halsbury's Laws of England/CONSTITUTIONAL LAW AND HUMAN RIGHTS (VOLUME 8(2) (REISSUE))/1. INTRODUCTION: BASIC PRINCIPLES OF THE CONSTITUTION OF THE UNITED KINGDOM/(7) THE DESCENT OF THE CROWN AND PROVISIONS SECURING THE SUCCESSION/(i) Descent of the Crown/35. Parliament's power to limit descent of the Crown. 35. Parliament's power to limit descent of the Crown. The Bill of Rights, being thus confirmed by a Parliament summoned in the constitutional manner, was formally credited with the force of a legal statute, and appears upon the statute books as such (see infra). For a full discussion of the logical difficulties involved in the irregular procedure employed see Maitland Constitutional History of England (1908) pp 283-285. Here is the extract from Maitland that is referred to: “Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible. Had it failed, those who attempted it would have suffered as traitors, and I do not think that any lawyer can maintain that their execution would have been unlawful. The convention hit upon the word * abdicated' as expressing James's action, and, according to the established legal reckoning, he abdicated on the II December, 1688, the day on which he dropped the great seal into the Thames. From that day until the day when William and Mary accepted the crown, 13 February, 1689, there was no king of England. Possibly the convention would better have expressed the truth if, like the parliament of Scotland, it had boldly said that James had forfeited the crown. But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned ? Not by a king of England, but by a Prince of Orange. Even if we go back three centuries we find no precedent. The parliaments of 1327 and of 1399 were summoned by writs in the king's name under the great seal. Grant that parliament may depose a king, James was not deposed by parliament; grant that parliament may elect a king, William and Mary were not elected by parliament. If when the convention met it was no parliament, its own act could not turn it into a parliament. The act which declares it to be a parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being king and queen ; but how do they come to be king and queen t Indeed this statute very forcibly brings out the difficulty—an incurable defect. So again, as to the confirming statute of 1690. Do not think that I am arguing for the Jacobite cause. I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution, a very necessary and wisely conducted revolution, but still a revolution. We cannot work it into our constitutional law…”. In other words, to overthrow the settlement of 1688 would require the restoration of the Stuart line in defiance of the verdict of “Trial by battle”. When the Stuart line usurped their authority in claiming that the “Divine Right of Kings” allowed them (amongst other abuses) to disarm their opponents they were lawfully overthrown. The same could happen again if the Home Office are not careful or if their policies, as noted below, wilfully or having been subverted make such a conflict inevitable. These passages from Blackstone confirm that the settlement of The Crown on the present line was lawful and that there is no authority to disregard the common law beginning with an account of how the peace treaty known as Magna Carta was settled, it being the precedent for events in 1688 and 2001: “A metrical chronicle (4) records the threat to depose the King, (John) unless he fully amended the law and furnished undoubted guarantees for a lasting peace. On 5th May, the barons went through the ceremony of diffidatio, or formal renunciation of allegiance,(1) a recognised feudal right, and not involving treason if justified by events and properly intimated to the overlord.(2) (4) Chronica de Mailros, sub anno 1215. 1. Blackstone, Great Charter, p. xiii, citing Annals of Dunstable (p. 43), says they were absolved at Wallingford by a Canon of Durham. 2. Cf. Adams, Origin, 181 n.; 306, 312; cf. also infra under c. 61. Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction,by William Sharp McKechnie (Glasgow: Maclehose, 1914). Here is Blackstone’s account in his Commentaries on the Laws of England: “On 5 May, the barons, having chosen as their leader, Robert Fitzwalter, acclaimed by them as “Marshal of the Army of God and Holy Church,” performed the solemn feudal ceremony of diffidatio, or renunciation of their fealty and homage, a formality indispensable before vassals could, without infamy, wage war upon their feudal overlord. Absolved from their allegiance at Wallingford by a Canon of Durham, they marched on London, on the attitude of which all eyes now turned with solicitude. When the great city opened her gates to the insurgents, setting an example to be immediately followed by other towns, she practically made the attainment of the Great Charter secure. The Mayor of London thus takes an honoured place beside the Archbishop of Canterbury among the band of patriots to whose initiative England owes her Charter of Liberties. John, deserted on all sides, and with an Exchequer too empty for the effective employment of mercenary armies, agreed to a conference on the 11th day of June, a date afterwards postponed till the 15th of the same month. It was on 15 June, then, in the year 1215, that the conference began between John, supported by a slender following of half-hearted magnates, upon the one side, and the mail-clad barons, backed by a multitude of determined and well-armed knights, upon the other. The conference lasted for eight days, from Monday of one week till Tuesday of the next. On Monday the 15th, John set seal to the demands presented to him by the barons, accepting every one of their forty-eight “Articles,” with the additional “Forma Securitatis” or executive clause, vesting in twenty-five of their number full authority to constrain King John by force to observe its provisions...”. Blackstone, Great Charter, p. Xiii. Here is confirmation from Blackstone’s Commentaries that “Right of War” sets lawful title to The Crown and the limitations which bind the King: “THIS conquest then by William of Normandy was, like that of Canute before, a forcible transfer of the crown of England into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. For, the victory obtained at Hastings not being a victory over the nation collectively, but only over the person of Harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to alter the nature of the government. And therefore, as the English laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties; the first and principal of which was it's descendibility. Here then we must drop our race of Saxon kings, at least for a while, and derive our descents from William the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the dernier resort of kings) a strong and undisputed title to the inheritable crown of England...”. Blackstone's Commentaries on the Laws of England Book the First : Chapter the Third : Of the King and His Title P 193. I respectfully remind you of the Oath of Allegiance: “Oath of allegiance “I, A. B. , do swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law.” The principles enunciated by Blackstone are the reasons why the Oath you swore includes “Heirs and successors according to law”. You, together with military officers (But not explicitly constables and magistrates) are expected to make a legal determination as to who the lawful successors, if any, to the present or a late incumbent are. I respectfully submit, for the reasons given above, that it is not the Stuart line and that no attempt to set aside the settlement of 1688 and apply a different system of law should be entertained even if the Home Office have gotten away with it since 1969: “No practice or custom, however prolonged or however acquiesced in on the part of the subject could be relied on by the Crown as justifying an infringement of the provisions of the unrepealed Bill of Rights…”. Bowles v. Bank of England (1912). Having had 30 years’ experience at the bottom end of the food chain in doing my best to maintain order by consent, and as the bearer of a Saxon family name, I can confidently state that the present establishment would do well to remember Kipling’s advice, or they will be replaced. In the present circumstances, the known enemies of the Realm are the better armed (and trained in war and in National Service in their countries of origin) and there is a risk that they would prevail in and exploit any large scale break down of civil order. In which case, if nothing else, Sharia law will rule and your jobs, pensions and probably lives will be forfeit either to the new rulers or as condign punishment for neglect of your duty to uphold the common-law by those whom you let down. Norman and Saxon A.D. 1100 "My son," said the Norman Baron, "I am dying, and you will be heir To all the broad acres in England that William gave me for share When he conquered the Saxon at Hastings, and a nice little handful it is. But before you go over to rule it I want you to understand this:– "The Saxon is not like us Normans. His manners are not so polite. But he never means anything serious till he talks about justice and right. When he stands like an ox in the furrow – with his sullen set eyes on your own, And grumbles, 'This isn't fair dealing,' my son, leave the Saxon alone. "You can horsewhip your Gascony archers, or torture your Picardy spears; But don't try that game on the Saxon; you'll have the whole brood round your ears. From the richest old Thane in the county to the poorest chained serf in the field, They'll be at you and on you like hornets, and, if you are wise, you will yield. "But first you must master their language, their dialect, proverbs and songs. Don't trust any clerk to interpret when they come with the tale of their wrongs. Let them know that you know what they're saying; let them feel that you know what to say. Yes, even when you want to go hunting, hear 'em out if it takes you all day. They'll drink every hour of the daylight and poach every hour of the dark. It's the sport not the rabbits they're after (we've plenty of game in the park). Don't hang them or cut off their fingers. That's wasteful as well as unkind, For a hard-bitten, South-country poacher makes the best man- at-arms you can find. "Appear with your wife and the children at their weddings and funerals and feasts. Be polite but not friendly to Bishops; be good to all poor parish priests. Say 'we,' 'us' and 'ours' when you're talking, instead of 'you fellows' and 'I.' Don't ride over seeds; keep your temper; and never you tell 'em a lie!" "The Reeds of Runnymede" (Magna Charta, June 15, 1215) AT Runnymede, at Runnymede What say the reeds at Runnymede? The lissom reeds that give and take, That bend so far, but never break, They keep the sleepy Thames awake With tales of John at Runnymede. At Runnymede, at Runnymede, Oh, hear the reeds at Runnymede:-- "You mustn't sell, delay, deny, A freeman's right or liberty. It makes the stubborn Englishry, We saw 'em roused at Runnymede! "When through our ranks the Barons came, With little thought of praise or blame, But resolute to play the game, They lumbered up to Runnymede; And there they launched in solid time The first attack on Right Divine-- The curt, uncompromising 'Sign!' That settled John at Runnymede. "At Runnymede, at Runnymede, Your rights were won at Runnymede! No freeman shall be fined or bound, Or dispossessed of freehold ground, Except by lawful judgment found And passed upon him by his peers. Forget not, after all these years, The Charter Signed at Runnymede." And still when Mob or Monarch lays Too rude a hand on English ways, The whisper wakes, the shudder plays, Across the reeds at Runnymede. And Thames, that knows the moods of kings, And crowds and priests and suchlike things, Rolls deep and dreadful as he brings Their warning down from Runnymede! ===============================================================================

Friday 4 August 2017

Maitland: The Police System.

The Police System. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “ We must speak briefly of the system by which order is maintained, and suspected persons are brought to justice, even though we can take but a superficial view of what has come to be a great department of law. The decline and fall of the sheriff's office has already been traced down to the seventeenth century^ During the whole of our period this process of decay is continued, the sheriff loses function after function. We know the High Sheriff now-a-days as a country gentleman, who (it may be much against his will) has been endowed for a single year with high rank, and burdened with a curious collection of disconnected duties, the scattered fragments of powers that once were vast. He receives the queen's judges on their circuits, he acts as a returning officer in parliamentary elections for his county, he executes civil judgments, and has to see to the hanging of those who are appointed to die. He has lost almost all other duties. Long ago the institution of justices of the peace gradually deprived him of all penal jurisdiction, and in 1887 the court in which he exercised that jurisdiction—the sheriff's tourn—was formally abolished (he had, I think, ceased to hold it for quite two centuries); in 1846 such civil urisdiction as the old county court had was transferred to the so-called new county courts ; in 1865 he was relieved of the custody of prisoners, except those appointed to die. I think that I have mentioned what now are his main duties. Civil execution is the most important of them, i.e. the seizing and selling of lands and goods in order to satisfy the judgments of civil courts. Such duties are performed for him by an under-sheriff, but the sheriff is answerable for the mistakes of his subordinates. Some fees and percentages are payable for this work, but the sheriff has no salary, and is always a loser by his office. He is still appointed by the king, who chooses 1 the sheriffs (pricks the sheriffs) from a list settled at a \) meeting, at which some of the judges and some of the ministers are present, and under the old statutes, of which we I have formerly spoken, he can hold office but for one year-. ^ See above, pp. 232—4. * See VizxCizxiA, Justice and Police. We have seen how in old times it was one of his main duties to pursue and arrest malefactors, and also how this work fell more and more under the control of the Justices of the Peace, the arrests being actually made by the parish or township constables under warrants of the justices. The old system of parish or township constables lingered on far into the nineteenth century. During the eighteenth century, this and that big town obtained a special act for the creation of a paid orce of watchmen, and London began to get a force of paid constables in 1792, a force which gradually increased in size and was placed more and more directly under the control of the Home Secretary. But for England at large, the only constabulary was that old parish or township constabulary of the early history of which we have spoken. So late as 1842 an effort was made to put new life into the old system. By an act of 1842 (5 and 6 Vic, c. 109) the general principle was put upon the statute book that every able-bodied man resident within any parish, between the ages of twenty-five and fifty-five, rated to the poor rate at £d^ or more, was liable to serve as constable for the parish ; but certain classes were specially exempted, and the list of exemptions was long. Lists of persons liable to serve were to be laid before the justices, and they were thereout to appoint so many constables for each parish as they should think fit; substitutes were allowed ; and' a man who had served in person or by substitute was exempt from serving again until every other person liable to serve had taken his turn ; he was not bound, as a general rule, to act outside his parish ; he might earn certain fees, but otherwise was unpaid. Thirty years later, in 1872, the new police forces having been created in the meantime, a statute ordained that no parish constables should be appointed for the future, unless the justices at Quarter Sessions should think fit. The act of 1842 can still be put in force if need be; the able-bodied man, not specially exempted, is liable to be constable for his parish or to find a substitute; but practically this statute is never put in force. Then there is another act of 1831 in force, which enables the justices, in case of any reasonable apprehension of riot or felony, to force men to serve as special constables. A Secretary of State has even greater powers—he can oblige the. exempted classes to serve as special constables ; we must not regard this power as obsolete, on occasions it would doubtless be used. But gradually a new police force was called into being. The Metropolitan force was created in 1829 by an act introduced by Sir Robert Peel. In 1839 the City of London force was created. In 1835 occasion was taken of the great reform of the municipal boroughs, to insist that every such borough should have a paid police force. In 1839 the counties were permitted, in 1856 they were compelled, to create paid county forces. Thus by the beginning of 1857 the whole of England had been brought within the new system. There is no one police force for the whole of England, but rather a number of distinct local forces. Part of the expense (if the force is reported as efficient) is paid by the nation, part is paid by the counties and boroughs. The various forces are annually reviewed by royal inspectors, who report to the Home Secretary, and only if their report is favourable, does the nation contribute to the expense. There are some very considerable differences between the various forces. Thus in the Metropolitan district there is very perfect centralization, no 'local authority' has anything to do with the system. A Commissioner and two Assistant Commissioners, holding office during the queen's good pleasure, regulate and command, appoint and dismiss the constables, but a supreme supervisory control is reserved to the Home Secretary. But take a county force: the Home Secretary can make general rules as to the government, pay and clothing of constables; but the justices in Quarter Sessions, with the Secretary's consent, determine the number of the force, and appoint and can dismiss the chief constable^ The chief constable has the general command of the force, subject to the lawful orders of the justices in Quarter Sessions, and he at his pleasure can dismiss any of his subordinates. ^ Under the Local Government Act of 1888 (51 and 52 Vict., c. 41) the County police was placed under the general control of the Standing Joint Committee of Quarter Sessions and the County Council. The control over individual constables is however retained by the Quarter Sessions and even by individual justices. See Jenks, A71 Outline of English Local Goverfinie?it, pp. 179—81. Let us then consider briefly the position of a police constable, he has peculiar duties and peculiar powers, and is subjected to a peculiar discipline. Take this last point first. The peculiar discipline to which he is subject is not nearly so stringent as that of military law; we have no court martial for the policeman. A county constable can be dismissed at the will of the chief constable. The chief constable, if he thinks him remiss or negligent in his duties, can reduce him in rank, or fine him one week's pay. On a summary conviction for neglect or violation of duty, he can be fined ^10 or condemned to a month's hard labour; but on the whole he has been left much to the general law, and if guilty of any offence against it, can be treated like another offender. Now looking at his powers and duties, we find that he has in the first place powers and duties concerning the arrest of offenders. It is his duty to execute warrants for arrest issued by the justices, and in so doing he is protected. Unless there is some flagrant illegality apparent in the warrant he is bound to obey it, and safe in obeying it. But then without any warrant he may, in certain cases, arrest suspected persons. What those cases are, you will have to learn some day when you study criminal procedure. You will find that in this respect every person, every member of the public has certain powers, but that a constable has greater powers. The distinction between felonies and misdemeanours here plays a large part. For example, there are a number of misdemeanours for which a man may be arrested without warrant, if he is caught in the act by a constable, while a person not a constable would not be safe in arresting him. You must remember this, that it does not follow that because I have committed a crime therefore I can be arrested without warrant either by anyone, or by a constable. If I have committed murder anyone may arrest me without a justice's warrant, if I am drunk and disorderly a constable may arrest me without a warrant; but if my crime is perjury or bribery, it will be unlawful to arrest me without warrant. He who does so, whether he be a constable or no, does an unlawful act, does me a wrong; and he does a dangerous act, for I may lawfully resist him, his attack is unlawful and my resistance is lawful. Now it is in these peculiar powers of arrest, and in the duty to exercise them, that hes the chief difference between the constable and the private man—he may lawfully make arrests which the private man cannot make lawfully. But statutes have gradually been heaping other powers and duties upon police constables, e.g. empowering them to enter public-houses to detect violation of the Licensing Acts. If it occurs to parliament that steam thrashing-machines are dangerous things that ought to be fenced, then it passes an act saying that * any constable may at any time enter on any premises on which he has reasonable cause to believe that a thrashing-machine is being worked contrary to the provisions of this act, for the purpose of inspecting such machines.' Examples might be indefinitely multiplied. We may pass to a few words about the provision that our law makes for the maintenance of order in extreme cases, and we may start with this, that it is the common law right and duty of all persons, whether constables or no, to keep the peace, and according to their power to disperse, and if necessary arrest, those who break it. From an early time the common law was supplemented by statutes, statutes of the Tudor reigns which made it felony for twelve persons or more to continue together riotously for an hour after they had been ordered to disperse by a justice of the peace. These statutes were temporary, and expired at the death of Elizabeth ; in 1714 they were replaced by the famous Riot Act (i Geo. I, St. 2, c. 5), which is still in force. It makes it felony for twelve rioters to continue together for an hour after the reading of

Maitland: The History of the Army.

The History of the Army. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “ The last topic with which we can deal before passing to a new period is the history of the army—a matter of which we have hitherto said too little. After the Conquest the feudal tenures had supplied the king with troops; but the feudal array was an extremely clumsy weapon. The tenant by knight service was only bound to serve for forty days in the year—and there was constant friction between the king and his barons as to the conditions of the service—were they bound to serve in Normandy? were they bound to serve in Germany?—on more than one famous occasion these questions were raised, and the embarrassed king had to make concessions. Already in 1159 Henry II took the first scutage, by way of composition for personal serviced It is explained that his object was to spare the lives of his subjects and get ^ Traces of scutage have been found as early as the reign of Henry I. Round, Feudal England, p. 268. See M<:Kechnie, Magna Carta, pp. 86—90. 18—2 his foreign wars fought for him by mercenaries. Towards the end of his reign, in 1181, he revived and reorganized the ancient national force by his Assize of Arms. Apparently the idea of such a force had never ceased to exist; it had never become law that military service, at all events defensive military service, was limited by the system of military tenure. Every man, according to his degree, is to have suitable weapons—even the poorest free man is to have his spear and helmet. A national force, organized by counties, was thus created. Henry III reissued the assize in an amplified form, and it forms the base of one of his son's great statutes, the Statute of Winchester. Its date is 1285, so there is just a century between it and the Assize of Arms\ Every free man between the ages of fifteen and sixty is to have armour according to his wealth. There are five classes, ranging from him who has £\^ of lands and 40 marks of goods, a habergeon, iron helmet, sword, knife and horse, down to him who is merely to have his bow and arrows. Twice a year the arms are to be viewed in each hundred by two elected officers called constables. These provisions occur in close connection with others enforcing the ancient duties of watch and ward, of hue and cry. If this national force is to be useful against the public enemy, it is to be useful also for police purposes, for apprehending malefactors and the like. Its officers you will, observe are 'constables'—the title is originally a military title, which spreads downwards from the king's constable, who along with the king's marshall arrays and leads the royal forces. Even the lowest officers in the national force become constables; the constable of the township looks after the armour of the township, above him are the constables of the hundred; they again are below the constable, the high constable (as he comes to be called) of the county. The military duties of the constable of the township are from the first allied with the duty of keeping the peace and apprehending malefactors—the ancient village officers, the reeves, the headboroughs (chiefs of the frankpledge), become also the constables, and lose their older names. ^ Select Charters^ pp. 154—6, 469—74. To return. The obligation of this armed force, defined by the Statute of Winchester, to take part in war offensive or defensive, is for a long while very indefinite. Of course it could not be contended that the king might send every able-bodied man out of the realm to serve in France. We find that Edward I commissions certain of his servants to choose out a fixed number of able-bodied men from their respective counties. In other words, he issues commissions of array. The forces thus levied he pays at his own cost. The troops from a county are under the command of a royal capitaneiis or captain, in whom we may see the forerunner of the lord-lieutenant of later times. The sheriff would naturally be the head of the county force, and so in theory he remains; it is he who can raise the power of the county, the posse comitahis, for the pursuit of malefactors; but for actual warfare an annual officer (and permanent sheriffs the country will not stand) is not a good commander. So the sheriff loses his military functions at a time when the institution of permanent justices of the peace is sapping many other of his powers. Commissions of array become common under Edward II and Edward III, and the king does not always pay the soldiers whom he levies—he expects the counties to pay them ; the counties were required to provide arms not prescribed by the Statute of Winchester, to pay the wages of men outside of their own area and even outside of the kingdom. Complaints of this become loud. In 1327 the commons petition that they be not compelled to arm themselves at their own cost contrary to the Statute of Winchester, or to serve beyond the limits of their counties, except at the king's cost. The petition was granted by statute (i Edw. Ill, Stat. 2, c. 5) in this modified form. ' The king wills that no man be charged to arm himself otherwise than he was wont in the time of his (the king's) progenitors, and that no man be compelled to go out of his shire, but where necessity requireth and sudden coming of strange enemies into the realm; and then it shall be done as hath been used in times past for the defence of the realm.' But Edward had to make a further concession. By statute (25 Edw. Ill, Stat. 5, c. 8) it is accorded and assented that no man shall be constrained to find men-at-arms, hobblers nor archers, other than those which hold by such services, if not by common assent and grant made by parliament. Apparently those statutes were habitually broken or evaded. In 1402 they were confirmed by statute (4 Hen. IV, c. 13), and they seem to have been observed during the Lancastrian reigns. The Welsh and Scottish wars of Henry VI were regarded as defensive, resistances of invasion, and the county forces could lawfully be called to meet them. The army whereby Henry V won his victories in France consisted partly of soldiers voluntarily enlisted who had the king's wages, partly of forces raised by lords who served the king by indenture, by special bargain. During the Wars of the Roses both sides used the king's name for commissions of array, and the country got thoroughly accustomed to intestine war,compulsory service, and extorted loans and benevolences. The statutes of Edward III remained on the statute book ; so did the Statute of Winchester. The Tudor despotism was not enforced by any standing army; that is one of the most noticeable things in the history of the time. One or two hundred yeomen of the guard and a few guards in the fortresses were the only soldiers that the king kept permanently in his pay. Commissions of array, however, were issued from time to time; the counties were compelled to provide soldiers even for foreign service, and the statutes of an earlier time seem to have been disregarded and perhaps forgotten. An important act of 1557 (4 and 5 Philip and Mary, c. 3) tal^es no notice of the old acts, but speaks of mustering and levying men to serve in the wars as a recognized legal practice, and, as it seems to me, implicitly sanctions impressment by means of commissions of array, even impressment for foreign service. Certain offences when committed by the soldiers when mustered and levied are to be tried by the king's lieutenant,'the lord-lieutenant' as he is here called. The usage of appointing a permanent lord-lieutenant for each county is said to date from this reign. Another statute of this same year 1557 (4 and 5 Philip and Mary, c. 2) expressly repealed so much of every statute of earlier date as concerned the finding or keeping of horse or armour; and it enacted a new scale of armour, which replaced that ordained by the Statute of Winchester. But this statute was itself repealed in 1603 by I James I, c. 25, an act which repealed in a wholesale fashion a large number of the Tudor statutes. No reason is given for the repeal; Hallam suggests that the accession to the English throne of the king of Scotland had removed the chief necessity for a defensive force. But the repeal had a perhaps unexpected effect. Until 1850 it was our law that if statute A be repealed by statute B, and then statute B be si mply repealed by statute C, statute A is thus revived—so the Statute of Winchester came to life once more^ Then in the days of Charles I it became matter of hot debate whether the armed force which the old statutes created was at the king's disposal. This force was just acquiring the new name of militia, and the control over the militia became one of the chief points of controversy between crown and parliament. Meanwhile no standing army is kept up; for foreign warfare a temporary army is got together partly by virtue of feudal obligation, partly by voluntary enlistment, partly by impressment. However, in James's reign we find that the troops are not always disbanded immediately on their return to England, and we find that commissions of martial law are issued for their governance. Thus at the end of the reign, December, 1624, there are troops at Dover. A commission is issued to the Mayor and others empowering them 'to proceed according to the justice of martial law against such soldiers... and other dissolute persons joining with commit any robberies, felonies, mutinies or other outrages or misdemeanours...and then to execute and cause to be put to death according to the law martial' Of the very questionable legality of such commissions we have before spoken : here let us notice that only by such means could a standing army be held together. This, I think, has been the verdict of long experience, that an army cannot be kept together if its discipline is left to the ordinary common law. These commissions, you will observe, went far beyond matters of military ^ 13 and 14 Victoria, c. ii. 5. ^ Pat. Roll, 22 Jac. I, part 4, printed in Prothero, Statutes and Constitutional Documents (1559—1625), pp. 398—9. discipline—they empowered the commissioners to try soldiers 'and other dissolute' persons for robberies and other felonies, as well as for mutinies. The difficulty of keeping a standing army was, as James's successors found, a double difficulty— (i) that of maintaining any discipline without having recourse to illegal commissions, (2) that of paying troops without having recourse to illegal modes of raising money. As regards the legality of pressing soldiers, we have this to remember in the king's favour, and it is too often forgotten, that the legality of pressing sailors seems to have been fully admitted. From an early time, certainly through the fourteenth century, we find that the king presses sailors and presses ships for transport and for naval warfare. This is done by means of commissions closely similar to the commissions of array. But while the commissions of arraying soldiers excited much opposition, and parliament was constantly petitioning about them and sometimes succeeded in getting statutes passed limiting the king's power, the pressing of sailors and ships seems not to have been a great grievance. All one hears by way of protest is that the sailors ought to be at the king's wages from the time when they are on board ship. A statute of 1378 (2 Ric. II, c. 4) distinctly recognizes the lawfulness of the practice—it speaks of sailors arrested and retained for the king's service, and provides a punishment for them if they run away. Many later statutes speak of pressing as a lawful process. There are several from the last century which do so by making exceptions; in these and those circumstances sailors are not to be impressed. No word in the Petition of Right or the Bill of Rights is directed against this prerogative; the class affected by it was, I suppose, too small to make its voice heard, or else the necessity of manning a navy was considered so great that the king's power was never called in question…”. Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.

Maitland: The Constable.

The Constable. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “Our last word shall be as to the constables. A constabulary in our modern sense, a force of men trained, drilled, uniformed, and paid there is not—our modern police force is very modern indeed. But it has become the law that every parish—or more strictly speaking every township—is bound to have its constable. The constable as we have said is originally a military officer—a petty officer in the county force; but then the county force, the posse comitatus, is as much concerned with making hue and cry after malefactors as with defensive warfare ; this work falls more and more into the constable's hands, and as the militia becomes more military the constable becomes less military, more purely, in our terms, a police officer. In the seventeenth century he is still elected by his neighbours in the old local courts, in those districts in which such courts still exist: elsewhere and perhaps more generally he is appointed by the justices. Every capable inhabitant of the township can be appointed constable, unless there is some special cause for exemption. Remember that all, or almost all, of our old common law offices are compulsory offices—a person appointed cannot refuse them. To this day a man may be made sheriff or mayor of a borough against his will. Generally the person chosen as constable was allowed to find a respectable substitute—and this he could do for £I0: the office was annual. The constable had no salary, but he was entitled to demand certain fees for some part of his business. His chief business was the apprehension of malefactors, and for this purpose he was armed with certain powers additional to those which the ordinary man has: thus it was sometimes safe for a constable to make an arrest on suspicion, when it would not have been lawful for a private man. It is well to remember that the constable is an officer long known to our common law: a great part of the peculiar powers of the modern policeman are due to this—that he is a constable, and as such has all those powers with which for centuries past a constable has been entrusted by law. Gradually the constables come more and more under the control of the justices of the peace—in particular, it becomes less and less usual for arrests to be made without the warrant of justices, and in executing such warrants the constable has special protection…”. “The Police System. We must speak briefly of the system by which order is maintained, and suspected persons are brought to justice, even though we can take but a superficial view of what has come to be a great department of law. The decline and fall of the sheriff's office has already been traced down to the seventeenth century^ During the whole of our period this process of decay is continued, the sheriff loses function after function. We know the High Sheriff now-a-days as a country gentleman, who (it may be much against his will) has been endowed for a single year with high rank, and burdened with a curious collection of disconnected duties, the scattered fragments of powers that once were vast. He receives the queen's judges on their circuits, he acts as a returning officer in parliamentary elections for his county, he executes civil judgments, and has to see to the hanging of those who are appointed to die. He has lost almost all other duties. Long ago the institution of justices of the peace gradually deprived him of all penal jurisdiction, and in 1887 the court in which he exercised that jurisdiction—the sheriff's tourn—was formally abolished (he had, I think, ceased to hold it for quite two centuries); in 1846 such civil coming before a court of law, but still more unpopular to deny the suppliant that redress to which he had been declared entitled by the judgment of a court. (iv) We can hardly lay too much stress on the principle that though the king cannot be prosecuted or sued, his ministers can be both prosecuted and sued, even for what they do by the king's express command. We often say that in this country royal immunity is coupled with ministerial responsibility: but when we speak of ministerial responsibility we too often think merely of the so-called responsibility of ministers to parliament. Now that is an important matter; it is an important matter that our king cannot keep in office advisers who have not the confidence of the majority of the House of Commons—in the last resort this impossibility could be brought home to him by a refusal to grant supplies, or a refusal to renew the Army Act. But let us look at the matter a little more closely. Strictly speaking, ministers are not responsible to parliament; neither House, nor the two Houses together, has any legal power to dismiss one of the king's ministers. But in all strictness the ministers are responsible before the courts of law and before the ordinary courts of law, and they are there responsible even for the highest acts of state ; for those acts of state they can be sued or prosecuted, and the High Court of Justice will have to decide whether they are legal or no. Law, especially modern statute law, has endowed them with many great powers, but the question whether they have overstepped those powers can be brought before a court of law, and the plea *this is an official act, an act of state' will not serve them. A great deal of what we mean when we talk of English Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.

Maitland: Status of Catholics.

Status of Catholics. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “ With the Catholics it was still far otherwise. Catholicism had been treated not as a mere religious error, but as a grave political danger, and considering the risings of 1715 and 174S, we are perhaps not justified in condemning that treatment. How enormously severe the law was, will appear from the following passage from Blackstone^: ' Papists may be divided into three classes—persons professing popery, popish recusants convict, and popish priests, 2. Popish recusants, convicted in a court of law of not attending the service of the Church of England, are subject to the following disabilities, penalties and forfeitures, over and above those before mentioned. They are considered as persons excommunicated ; they can hold no office or employment; they must not keep arms in their houses, but the same may be seized by the justices of the peace ; they must not come within ten miles of London on pain of ; they can bring no action at law or suit in equity; they are not permitted to travel above five miles from home unless by licence, upon pain of forfeiting all their goods; and they may not come to court under pain of ;^ioo....A married woman, when recusant, shall forfeit two-thirds of her dower or jointure, may not be executrix or administratrix to her husband, nor have any part of his goods, and during the coverture may be kept in prison, unless her husband redeems her at the rate of ;^io a month or the third part of all his lands. And lastly, as a feme-covert, a recusant may be imprisoned ; so all others must within three months after conviction, either submit and renounce their errors, or if required so to do by four justices, must abjure and renounce the realm, and if they do not depart or if they return without the king's licence, they shall be guilty of felony, and suffer death as felons without benefit of clergy… The greater part of this rigorous code was repealed in 1791 (31 Geo. Ill, c. 32)…”. Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.

Maitland: Standing Armies and Martial Law.

Standing Armies and Martial Law. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “Turning now to military affairs we have to recall the fact that before the days of Charles I proclamations of martial law had not been utterly unknown. Not to go back to the Wars of the Roses, Elizabeth had issued such a proclamation ^. in 1588 and again in 1595. James had followed the example in 1617, 1620, 1624. Probably we ought to say of them that they were illegal, though in this matter we may be prejudiced by what then was future history. Charles I early in his reign had recourse to such commissions. It became always clearer that there must be a standing army and that a standing army could only be kept together by more stringent rules and more summary procedure than those of the ordinary law and the ordinary courts. Another grievance was the billeting of soldiers. In 1628 the king had to assent to the Petition of Right. After dealing with the forced loan and the imprisonments by the king's command, it recited that * of late great companies of soldiers and mariners have been dispersed into divers counties of the realm and the inhabitants against their wills have been compelled to receive them into their houses... against the laws and customs of this realm.' Then it recalled the words of Magna Carta, Nulliis liber homo, and recited the commissions of martial law; these it declared to be wholly and directly contrary to the laws and statutes of the realm. It prayed that the king would be pleased to remove the said soldiers and mariners, ' and that your people be not so burdened in time to come, that the commissions of martial law might be revoked and annulled and that no such commissions might be issued for the future.' This of course settled the law, and no expedient for evading it could be discovered. The judges had to inform the king's generals that soldiers who offended must be tried by the ordinary courts; that only when an army of the king was in presence of the enemy could there be any place for martial law. Coke, in one of his latest books lays down that to put a man to death by martial law is murder^ Meanwhile the king and parliament began to quarrel about another and a still more vital point. In whom was the command of the military forces of the kingdom vested? I think that historians and lawyers must agree that it was in ^ 3 Inst. 52. Reference may be made to Dicey, Laiv of the Constitution, 6th ed. c. vni, and App. Xii; also to The Charge of the Lord Chief justice to the Grand Jury in the case of the Queen v. Nelson and Brand, ed. F. Cockburn, 1867. the king. It would have been necessary to go back to very remote and revolutionary times for a precedent of an attempt by parliament to wrest this power from the king's hands. However Charles was suspected, and perhaps justly suspected, of desiring to use the army for the overthrow of the parliamentary constitution; and in 1642 the Houses asserted that the power of the militia (as it was called) was or at all events ought to be in their hands. This, as is well known, was one of the immediate causes of the Civil War; the king was required to consent to a bill putting the militia, as the old county forces were now called, beyond his control. That the militia and all fortified places should be in such hands as parliament should appoint was one of the Nineteen Propositions tendered to him at York in June, 1642. During the war which followed both sides had recourse to martial law for the government of their armies army, parliament itself becoming the despised slave of the force that it had created. At the Restoration the very name of a standing army had become hateful to the classes which were to be the ruling classes. In 1661 a statute (13 Car. II, c. 6) declared that the *sole supreme government of the militia and of all forces by sea and land is, and by the laws of England ever was, the undoubted right of the king and his predecessors, and that neither house of parliament could pretend to the same.' The old county force was remodelled by this act. But loyal as the parliament might be, it would not trust even a king with such an engine of tyranny as a standing army. The Convention Parliament passed an act disbanding the army; the king assented; he also had some reason to dread a standing army. The act of disbandment, however, sanctioned the continuance of * the Guards and Garrisons.' The garrisons were to be placed in the condition in which they existed in, and out of the residue of the soldiers the king was to be at liberty to retain a guard. The number of this guard was not specified. Throughout the reign and on to the Revolution no more than this was legalized. Controversy constantly broke * Gardiner, Constitutional Documents^'^'^. 245—61. out between king and parliament as to military matters. It was extremely difficult to prevent the king's guards living at free quarters, though the billeting of them was undoubtedly illegal. This practice had been declared illegal by the Petition of Right, and the old prerogatives of purveyance and pre-emption with which it was nearly connected had been abolished along with the military tenures. The king could impress no cart for military transport, he could buy no hay, straw, victual, or other thing save by free bargain. Anyone who attempted to exercise these old prerogatives was liable to an action for treble damages at the suit of the party grieved ; anyone who attempted to stop such an action was liable to the punishments denounced by the statute of prae-mimire. Also it was difficult for the king to keep his soldiers in hand. In time of peace no punishment, at least no punishment extending to life or member, could be inflicted on them except in the ordinary course of the common law. On the other hand it was practically very difficult to prevent the officers from proceeding according to what they conceived to be the justice of martial law. However, in 1666, articles of war were issued providing for the trial of even capital offences by court martial; also forbidding that any civil magistrate should imprison a soldier save for treason, or for killing or robbing a person not being an officer or soldier. Seemingly the officers who sat on such courts martial must have risked their necks. Soon after this Clarendon was impeached, ' for that he hath designed a standing army to be raised and to govern the kingdom thereby; and advised the king to dissolve parliament and to lay aside all thoughts of parliament for the future, to govern by a military power and to maintain the same at free quarters and contributions.' But to keep a standing army of any considerable size without supplies from parliament was impossible, and parliament was beginning to appropriate its supplies and to impeach those who infringed the clauses of appropriation. Already, in 1666, a subsidy was granted ; £30,ooo and no more was appropriated to the pay of the guards, the residue was to be spent in the war. In 1676 Charles declared that he was going to war with France; parliament granted but appropriated; war was not made; parliament passed an act for disbanding the army, an act which contains an important clause directed against the practice of billeting—important because it shows that the Petition of Right was not observed. Money was appropriated for the disbanding of the army. Seymour was impeached for having misappropriated these supplies—using them to retain instead of to disband the soldiers. Danby, the Lord Treasurer, was impeached ' for that he had traitorously endeavoured to subvert the ancient and well-established form of government in this kingdom, and the better to effect that his purpose, he did design the raising of an army upon a pretence of war against the French king, and to continue the same as a standing army within this kingdom ; and to that end he has misappropriated money, whereby the law is eluded, and the army is yet continued.' Nevertheless Charles and James after him in one way and another kept the army on foot. James seems to have had above 16,000 men. After Monmouth's rebellion courts martial sat to administer martial law upon the soldiers. I have before me^ the record of one of these courts martial. Peter Teat and Peter Innes of Captain Bedford's regiment are tried by eighteen officers under one of the articles of war lately issued which says that ' No officer or soldier shall use any traitorous words against the sacred person of the king's most excellent majesty upon pain of death.' They are condemned to be hanged. The Bill of Rights declared that one of James's offences had been that he had raised and kept a standing army in time of peace without consent of parliament, and quartered soldiers contrary to law; and further that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. The words ' in time of peace' should be noticed ; they certainly seem to imply that in time of war the king may keep a standing army even without the consent of parliament. But before the Bill of Rights the first Mutiny Act had already been passed (i William & Mary, c. 5). The troops favourable to James were to be shipped off to the Low Countries. When they reached Ipswich, a mutiny broke out. It was ^ Clode, Military Forces of the Crozvji, vol. I, p. 477. necessary to take rapid action, and a bill was hurriedly passed through parliament. It is a very brief affair to this effect: any soldier in the king's service who shall excite or join in any mutiny or sedition in the army or shall desert shall suffer death or such other punishment as by a court martial shall be inflicted. Then follow a few sentences as to the constitution of courts martial. It is provided that nothing in this act shall exempt any officer or soldier from the ordinary process of law; also that it shall not affect the militia forces, that it shall only be in force until the lOth Nov. next, that is for about half-a-year, that nine out of thirteen officers constituting a court martial must agree in passing sentence of death. That is the whole sum and substance of the first mutiny act. The only crimes that it sends to a court martial are mutiny, sedition, desertion ; and in no case is an officer or soldier exempted from the ordinary law. It should be added that though parliament was in haste, it was careful to state in the preamble that the raising or keeping a standing army within this kingdom in time of peace, unless it be with consent of parliament, is against the law. Also that no man may be forejudged of life or limb or subjected to any kind of martial law, or in any other manner than by the judgment of his peers, and according to the known and established laws of this realm. By this time of course it was the orthodox belief of all men that trial by jury was the judicium parium of the Great Charter. From this time forward it became the regular practice to pass temporary mutiny acts. For a while this was not done with perfect regularity. On several occasions during the reigns of William and Anne there was for a few months no mutiny act in force. Sometimes on the other hand the act was to endure for two years. But very soon the practice became settled of passing the act for one year only and of passing such an act in every year. All along through the last century it was regarded as something exceptional, an evil of which we should get rid, if once we had a settled peace. And so, for two centuries, year by year, the statute book was burdened by annual mutiny acts which always tended to become longer and longer…”. “In connexion with this subject a few last words should be said of martial law. We have already seen that under the provisions of the Army Act which is called into force year by year we have among us a large number of persons who are living under a special law. This law is to be found partly in the Army Act itself, partly in articles which can be made from time to time by the queen in exercise of powers given by that act; and it seems probable that, apart from the act, the queen has some, not very well defined, power of making Articles of War for any troops that she is lawfully keeping. This special law for soldiers is administered by tribunals known as courts martial, and is frequently spoken of as martial law; but in the fact it is called ' military law,' and it seems very desirable that we should adopt that term rather than the other. For at times the belief has prevailed that there is some other body of rules known as martial law, some body of rules that the king or his officers could in cases of emergency bring into force by way of proclamation and apply to persons who are not soldiers and who therefore are not subject to that special code of military law of which we have just been speaking. ^ Charge to the Grand Jury of Bristol in 1832. State Trials, N.S., vol. in» p. 5. See also Dicey, Law of the Constitution, 6th edn.. Note VI, pp. 460—2. Now it may, I believe, be pretty confidently denied that there is any such body of rules. In the first place, you will remember that the Petition of Right, after reciting that commissions under the great seal had of late been issued to certain persons to proceed ' according to the justice of martial law’ declared that such commissions were illegal, and prayed that no commissions of the like nature should issue in the future. Then again our annual acts legalizing the army declare that *no man can be forejudged of life or limb or subjected to any punishment within this realm by martial law in time of peace.' The words * in time of peace,' which were not in the earliest Mutiny Acts, certainly seem to suggest that in time of war men may be punished by martial law. But we can find a sufficient meaning for them by saying that in time of war soldiers may be punished by martial law; that is to say, apart from the Army Acts the crown would have some power in time of war of maintaining discipline in its troops by regulations similar to those of our present military code. It must be confessed however that a parliament—an Irish parliament after the rebellion of 1798—has spoken of martial law as though it were some known body of rules that might in times of great emergency be applied to persons who are not soldiers—that there can be such a thing as a proclamation of martial law. If however we ask, where are we to find this body of rules ? what is martial law ? we shall hardly get an answer to our question. When considered the matter seems to resolve itself into this—it is the right and duty of every subject to aid in the suppression of unlawful force; it is more especially the right and duty of magistrates and peace officers of all degrees to do so. The common law defines, though from the nature of the case not very exactly, the occasions on which force may be repelled by force, and the amount of force that can be used ; and in great emergencies it may become necessary that even death should be inflicted^ and deliberately inflicted, for the suppression of disorder. A proclamation of martial law can have no other legal effect than this—it is a proclamation by the king, or by persons holding office under the king, announcing that a state of things exists in which it has become necessary that force shall be repelled and suppressed by force; it is a warning that the part of our common law which sanctions such repulsion and suppression, has come into play. A court of law, an ordinary court of law, may afterwards have to judge whether really there was a legal justification for these high-handed acts which were done in the name of peace and order; but doubtless it might, and in appropriate circumstances would, take into consideration the fact that those who suffered by such acts had had full notice that they were about to be done. But suppose one of the rebels captured, there is no court that can try him save the ordinary criminal courts of the country. In particular circumstances it might perhaps become necessary to shoot him in order that he might not escape or be rescued, and undoubtedly in such a case, if time permitted, it would be well for those who had him in custody to satisfy themselves that he was a rebel. But any inquiry that they might make about this could not have the effect of a trial before a competent tribunal; it would be a wise precaution, but not a judicial proceeding having force as such. He would not really be tried and condemned b}^ any body of rules known as martial law—we know not where to look for any such body of rules—if lawfully put to death, he would be put to death under a rule of our common law, which justifies the suppression by force of unlawful force. As to the whole of this matter see the opinion of Edwin James and Fitzjames Stephen in the case of Governor Eyre (Forsyth, Cases and Opinions on Constitutional Law, p. 55i)\ Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.

Maitland: The Bill of Rights 1688/9.

The Bill of Rights 1688/9. Maitland on the Revolution of 1688. The Constitutional History of England. Cambridge University Press 1909. “Passing to the events of 1688 we see that it was extremely difficult for any lawyer to make out that what had then been done was lawful. What had happened was briefly this. In July, 1688, James had dissolved parliament, so that at the critical moment there was no parliament in existence. On 5 November William landed; on 11 December James fled from London and dropped the great seal into the Thames; on the 22nd he left the kingdom. William, Prince of Orange, invited an assembly. It was rapidly got together. He summoned the peers and such of the members of the parliaments of Charles IPs reign (not James II) as were in London; the aldermen of London also were summoned. This, of course, the lawyer cannot but regard as a quite irregular assembly, called by one who is not, who does not profess to be king. The assembly met on 26 December, 1688, and it advised the Prince to summon a 'convention' of the estates of the realm. In accordance with this advice he invited the lords to come, and the counties and boroughs to send representatives to a convention on 22 January, 1689. The convention met. On 25 January the commons resolved that King James II having endeavoured to subvert the constitution of the kingdom by I breaking the original contract between king and people, and by the advice of Jesuits and other wicked persons having violated the fundamental laws and having withdrawn himself out of the kingdom, has abdicated the government, and that the throne has thereby become vacant. After some hesitation, on 12 February the lords agreed to this resolution, and it was resolved that William and Mary should be proclaimed king and queen. On 13 February the Houses waited on William and Mary and tendered them the crown, accompanied by the Declaration of Rights. The crown was accepted. The convention, thereupon following the precedent of 1660, passed an act declaring itself to be the parliament of England, notwithstanding the want of proper writs of summons. This Convention Parliament was not dissolved until early in 1690, and passed many important acts, including the Bill of Rights, which incorporated the Declaration of Rights. A new parliament met on 22 March, 1690, and this of course was duly summoned by writs of the king and queen. It proceeded to declare by statute that the king and queen were king and queen, and that the statutes made by the convention were and are laws and statutes of the kingdom. Now certainly it was very difficult for any lawyer to argue that there had not been a revolution. Those who conducted the revolution sought, and we may well say were wise in seeking, to make the revolution look as small as possible, to make it as like a legal proceeding, as by any stretch of ingenuity it could be made. But to make it out to be a perfectly legal act seems impossible. Had it failed, those who attempted it would have suffered as traitors, and I do not think that any lawyer can maintain that their execution would have been unlawful. The convention hit upon the word * abdicated' as expressing James's action, and, according to the established legal reckoning, he abdicated on the II December, 1688, the day on which he dropped the great seal into the Thames. From that day until the day when William and Mary accepted the crown, 13 February, 1689, there was no king of England. Possibly the convention would better have expressed the truth if, like the parliament of Scotland, it had boldly said that James had forfeited the crown. But put it either way, it is difficult for a lawyer to regard the Convention Parliament as a lawfully constituted assembly. By whom was it summoned ? Not by a king of England, but by a Prince of Orange. Even if we go back three centuries we find no precedent. The parliaments of 1327 and of 1399 were summoned by writs in the king's name under the great seal. Grant that parliament may depose a king, James was not deposed by parliament; grant that parliament may elect a king, William and Mary were not elected by parliament. If when the convention met it was no parliament, its own act could not turn it into a parliament. The act which declares it to be a parliament depends for its validity on the assent of William and Mary. The validity of that assent depends on their being king and queen ; but how do they come to be king and queen t Indeed this statute very forcibly brings out the difficulty—an incurable defect. So again as to the confirming statute of 1690. Do not think that I am arguing for the Jacobite cause. I am only endeavouring to show you how much purely legal strength that cause had. It seems to me that we must treat the Revolution as a revolution, a very necessary and wisely conducted revolution, but still a revolution. We cannot work it into our constitutional law. Passing from this point, we notice that the tender of the crown was made to William and Mary jointly; but William had refused to reign merely in his wife's right—such as it was —and the declaration of the convention was that William and Mary were to hold the crown during their joint lives and the life of the survivor of them, that, however, the sole and full exercise of the regal power was to be in William during their joint lives, but was to be exercised in the names of William and Mary, and that after their deceases the crown should go to the issue of Mary, and in default of her issue to the Princess Anne and the heirs of her body, and for default of such issue to the heirs of the body of William. The Bill of Rights, passed in 1689, confirmed this settlement, adding a clause to the effect that any person who should hold communion with the See or Church of Rome or profess the Popish religion or marry a Papist should be incapable to inherit, possess or enjoy the crown and government of the realm, and that the crown should pass to the person next entitled. In 1700, after the death of Mary, William being childless, and Anne's son the Duke of Gloucester being dead, it became necessary to make a further settlement, and by the Act of Settlement (12 and 13 Will. Ill, c. 2) it was ordained that in default of issue of Mary, Anne, and William the crown should go to the Princess Sophia of Hanover and the heirs of her body being Protestants. She, a daughter of Elizabeth Queen of Bohemia, a daughter of James I, was the nearest heir according to the ordinary rules of inheritance, if Roman Catholics were excluded. A new form of coronation oath has been provided. About the coronation oath there has been controversy. In the reign of Charles I it became known that the king had taken an oath which differed in some respects from the ancient form. That ancient form has come before us already. In it the king promised to hold and keep the laws and righteous customs which the community of the realm shall have chosen— qiias vtilgus elegerit, les quels la commimaiite de vostre roiau^ne aura esleii. Now at Charles's coronation the last question put to him had been this: * Will you grant to hold and keep the laws and rightful customs which the community of this your kingdom have, and will you defend and uphold them to the honour of God as much as in you lieth } ' This form, you will observe, does not assert the right of the people, the community of the realm, to choose its own laws: the king is to hold and keep the laws which the community has. Archbishop Laud was accused of having tampered with the oath. His defence seems on this point to have been quite sound. He had administered the oath in the terms in which it had come to him, the terms to which James I had sworn, the terms to which Elizabeth had sworn. As to Mary's oath I know nothing; but a change had been made on the occasion of Edward VFs accession. He had sworn to make no new laws but such as should be to the honour and glory of God and to the good of the commonwealth, and that the same should be made by consent of his people as hath been accustomed. But a change seems to have been made yet earlier. There is extant a copy of the coronation oath in which alterations have been made in the handwriting of Henry III. The last clause reads thus—I will note the changes made by.the king's ♦ own hand—' And that he shall graunte to hold the laws and [approvyd] customes of the realm [lawful! and nott prejudicial to his Crowne or Imperiall duty], and to his power kepe them and affirm them which the [nobles and] people have made and chosen [with his consent].' The interpolations are very remarkable: they seem to point to the notion of an indefeasible royal power which laws cannot restrain ; the king will not bind himself to maintain laws prejudicial to his crown. Thus since the accession of Edward VI the terms of the oath seem to have varied—and Laud, I believe, successfully showed that he could not be charged with any insidious alterations^ But the meaning of the more ancient form, the form of Edward II's oath, now became a subject of bitter controversy; it was maintained that the elegerit — ' qtcas vulgus elegeriV — could not refer to the future: the kings are to uphold the old law, the law which the people had chosen, not the laws which the people should choose. On the other hand, it was even urged that the terms of the oath excluded the king from all share in legislation—that without perjury he could reject no bill passed by two Houses. Neither contention would harmonize with past history; on the one hand the old oath was a not indistinct declaration that there were to be no laws save those chosen by the community of the realm ; on the other hand the contention that the king was no part of the community was wild. However, when such opposite views were taken of the king's obligation, the time for war had come. The oaths of Charles II and James II seem to have been just those which Charles I had taken. Immediately after the Revolution a new oath was provided by a statute (i William and Mary, c. 6) which recites that the old oath was framed in doubtful words and expressions with relation to ancient laws and constitutions at this time unknown. The most important phrase is this—the king promises to govern the people of England and the dominions thereto belonging according to the statutes in parliament agreed on, and the laws and customs 1 The question is discussed by J. Wickham-Legg, The Coronation Order of King James /, London, 1902, pp. xcvi—cii. of the same; thus ' the statutes in parliament agreed on' take the place of leges qiias vulgus elegerit. By another clause in the oath the king has to swear that he will maintain to the utmost of his power the true profession of the gospel and the protestant reformed religion established by law, and preserve unto the bishops and clergy of the realm and the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them. Another obligation is laid upon the king by the Bill of Rights and by the Act of Settlement: on the first day of his first parliament he must make the declaration against transubstantiation, the invocation of the saints and the sacrifice of the mass. The clauses which deprive him of his crown in case he holds communion with the Church of Rome or marries a Papist, have already come before us…”. Note: Page numbers are not included because they vary according to the programme that it being used to view the text. The reader before relying on this information should take steps to verify it by cross checking with other sources.

My Blog List

  • No Title - Thanks for all the kind words. I'd like to shut the blog with this... Come home safe Lads... CSR
    13 years ago